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[2016] ZAGPPHC 109
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Tozamile v RMB Private Bank (A Division for Firstrand Bank Limited) (3964/2010) [2016] ZAGPPHC 109 (24 March 2016)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NO: 3964/2010
DATE: 24/3/2016
Not reportable
Not of interest to other judges
Revised
In the matter between:
BOTHA
TOZAMILE
Applicant
and
RMB PRIVATE BANK (A DIVISION FOR
FIRSTRAND BANK
LIMITED)
Respondent
JUDGMENT
JANSEN J
Background
:
[1]
This
matter is an opposed application wherein the rescission of an order
in terms of rule 46(1)(a)(ii) is sought.
[2]
The
applicant became aware of the judgment granted against him on 23
September 2014 when a letter from the respondent’s attorneys
was received. The applicant delivered the application for
rescission on 9 March 2015. The respondent makes no
point
of the hiatus period between 23 September 2014 to 9 March 2015 and
the court needs not address this issue.
Common cause facts
:
[3]
The
applicant fell into arrears regarding the payment of his monthly
instalments in terms of a loan agreement and mortgage bond
entered
into during or about November 2007.
[4]
Default
judgment was granted against the applicant on 13 October 2010.
[5]
The
respondent then brought an application in terms of rule 46(1)(a)(ii),
which was granted on 8 May 2014.
[6]
Apparently
a postponement of this matter was granted on 8 May 2014.
Whether the respondent knew of this application for postponement
is
in dispute.
[7]
On
10 July 2014 there was yet another postponement of this matter sought
by the applicant. Apparently, an oversight occurred
in the
respondent’s attorney of record’s offices regarding the
second postponement as a result of which the applicant
filed an
opposing affidavit to the rule 46(11)(a)(ii) notice and the
respondent filed a replying affidavit wherein no mention was
made of
the fact that the rule 46(1)(a)(ii) application was already granted
on 8 May 2014.
The matters in dispute
:
[8]
Hence
the matters in dispute are: —
[8.1] Did the applicant seek a postponement of the
rule 46(1)(a)(ii) application on 8 May 2014?
[8.2] Was the respondent aware of this application
for postponement.
[8.3] Should the applicant should be held liable
for the oversight on the part of the respondent’s attorneys
with regards
the further postponement of the matter and exchange of
affidavits between the parties, given that the rule 46(1)(a)(ii)
application
had already been heard on the 8
th
of May 2014.
The applicant’s version
:
[9]
During
or about November 2007 the applicant and the respondent entered into
a structured facility loan agreement in terms of which
the respondent
lent and advanced monies to the applicant, which loan was secured by
a registered bond over certain immovable property.
The
applicant fell into arrears with payments and the respondent issued
summons against the applicant on or about 11 May 2010.
[10]
As
stated, default judgment against the applicant was granted on 13
October 2010.
[11]
The
respondent enrolled the rule 46(1)(a)(ii) matter for 8 May
2014. The applicant was under the impression that a
postponement
of the matter was sought on 8 May 2014 and on 10 July
2014 successfully argued a further postponement in order for it to
file an
answering affidavit.
[12]
On
23 September 2014, more than four months after the postponement
sought by the applicant was granted, the respondent’s attorneys
of record sent a letter to the applicant informing him, deadpan, that
the rule 46(1)(a)(ii) application had been granted on
8 May
2014.
[13]
Precisely
how this imbroglio occurred is unclear to the court.
[14]
The
applicant, in his argument, emphasised that for the proper assessment
of a rule 46(1)(a)(ii) notice, the applicant’s
relevant
circumstances should be taken into account – clearly the reason
why the applicant filed an opposing affidavit.
Judicial
oversight is required, particularly where the immovable property is
the primary residence of the judgment debtor (the
applicant) as
prescribed by section 26(1) of the Constitution and the various
cases dealing with this point such as
First
Rand Bank v Fölscher and Another
2011 (4) SA 314
(GNP)
at 328H–I.
[15]
The
applicant contends that in accordance with the principle applied in
Concor Holdings (Pty) Ltd v Potgieter
2004 6 SA 491
(SCA)
at 495: —
“
Our law is that a person may be bound
by a representation constituted by conduct if the representor should
reasonably have expected
that the representee might be misled by his
conduct and if in addition the representee acted reasonably in
construing the representation
in the sense in which the representee
did so.
”
[16]
On
the evidence presented, the applicant acted reasonably at all times.
In
Van Ryn Wine and Spirit Co v
Chandos Bar
1928 TPD
417
at 423 the following was held: —
“
It is for the Court in each case to
have regard to all the circumstances and to decide whether the person
sought to be bound has
rendered himself liable by his unreasonable
conduct.
”
The respondent’s version
:
[17]
The
respondent relied on a point in
limine
,
namely that it was unclear whether the application for rescission was
brought in terms of rule 31(2)(b), rule 42 or the common
law.
It can safely be accepted that the application was brought in terms
of rule 42.
[18]
Apparently
the misunderstanding regarding the postponement on 8 May 2014
occurred because two matters should have been postponed
on 8 May 2014
(the other matter with case no 71447/2009). The applicant was
advised that both matters had been postponed
whereas, in actual fact,
the current rule 46(1)(a)(ii) application was granted.
This fact was conveyed to the applicant
about four months after the
grant of the application and after an answering and replying
affidavit in this rule 46(1)(a)(ii)
matter had been filed and a
postponement of this self-same matter had been sought by the
applicant and granted to the applicant
by the respondent on 10 July
2014.
[19]
The
respondent summarised the issues to be determined in this rescission
application as follows: —
[19.1] Was the order granted on 8 May 2014 valid.
[19.2] If valid, was the order invalidated by the
respondent’s conduct as a result of a miscommunication in the
respondent’s
attorneys of record’s office.
[19.3] Has the applicant made out a case for
rescission.
[20]
The
mainstay of the respondent’s argument was that the application
of 8 May 2014, granted in open court before his Lordship
Mr Justice
Tuchten, was valid, as the applicant had never sought to rescind the
13 October 2010 default judgment and further, because
the applicant
has not advanced any reasons to this court as to why the application
of 8 May 2014 should not have been granted.
[21]
This
stance adopted by the respondent is opportunistic. First, given
the hiatus period between 13 October 2010 and 8 May 2014,
a notice of
set down of the application was called for. Furthermore, both
parties laboured under the common mistake that
the matter had been
postponed and the parties were
ad idem
that the matter be postponed on 8 May 2014. That this was the
attitude of the respondent is borne out by the fact that it
allowed
the applicant the opportunity to file an answering affidavit and that
it filed a replying affidavit.
[22]
It
would be unconscionable for the respondent to rely on an order which
was apparently erroneously sought on 8 May 2014. The
respondent
surmises that the applicant would or should have had a representative
in court and asserts that there was no agreement
that the
rule 46(1)(a)(ii) application would be postponed. The
respondent’s stance is that because the applicant
had somebody
in court to argue the postponement of matter number 71447/2009, the
applicant should also have had a legal representative
at court on 8
May 2014 for the second application.
[23]
The
respondent further avers that even though the applicant might have an
explanation for not being in court as set out in its founding
affidavit, it has not set out any
bona
fide
defence.
[24]
The
court was referred to various cases such as
Lodhi
2 Properties Investments CC and Another v Bondev Developments (Pty)
Ltd
2007 (6) SA 87
(SCA)
in order to demonstrate that where there has been no procedural
irregularity which appears from the record which served before
the
judge granting an order in the absence of a party, a rule 42
application cannot succeed (
Bakoven
Ltd v GJ Howes (Pty) Ltd
1992
(2) SA 466
(E)
at 472 D). In the cases of
Nyingwa
v Moolman NO
1993 (2) SA 508
(Tk)
and
Stander
and Another v Absa Bank
1997 (4)
SA 873
(E)
it was, however, held that
in certain circumstances a judge may have regard to circumstances of
which a judge granting a default
order was unaware in order to decide
whether the order was granted erroneously.
[25]
It
was held in the
Lodhi 2
judgment
supra
that where a judgment was granted in circumstances where a plaintiff
was procedurally entitled thereto, it was valid and could
not be
invalidated because a defence was subsequently disclosed. It
was held that a defence on the merits was irrelevant
if subsequently
disclosed and could not transform a validly obtained judgment into an
erroneous judgment.
[26]
The
respondent’s reliance on this case is misplaced. It
cannot be stated that the application was procedurally correctly
granted on 8 May 2014. Had the judge been aware of the fact
that the parties were
ad idem
that a postponement should be granted he would not, procedurally,
have granted the order. Any doubt in a judge’s mind
as to
whether the respondent is in wilful default of appearance taints the
proceedings. Hence, in the specific circumstances
of this case,
it cannot be stated that the application was procedurally correctly
granted on 8 May 2014.
[27]
The
respondent is clutching at a bargain. Instead of abandoning the
order which was obtained due to a miscommunication, which
is fully
borne out by the fact that the respondent allowed the applicant to
file an opposing affidavit and that it filed a replying
affidavit
itself, it persists in its stance that the order of 8 May 2014 was
validly obtained.
[28]
In
the premises it is held that the application for rescission should be
granted and that the respondent should be punished with
a punitive
costs order for its opportunistic conduct.
[29]
In the
result, the following order is made: —
Order
1. The order granted under the above case number on 8 May 2014 is
rescinded.
2. The respondent is to pay the costs of the application on an
attorney and client scale.
JANSEN J
JUDGE OF THE HIGH COURT
For the Applicant
Advocate JA Sanders
Instructed by
Hugo
& Ngwenya Inc
(012-665 2997) (Ref:
Mr Ngwenya/N329/Rumbi)
For the Respondent
Advocate ASL Van Wyk
(076 367
6478/012 303 7782)
Instructed by
Tim
Du Toit & Co Inc
(012 470
7542) (Ref: MW LETSOALO/mo/PR1875)